In considering whether Nelson and Micah fairly characterize as "off the wall" the argument that for-profit corporations are entitled to free-exercise exemptions under RFRA, it might be helpful to recall two things the Supreme Court said about religious liberty claims by for-profit business owners in the post-Sherbert/pre-Smith era:
"so patently frivolous" That is how the Supreme Court described the contention of a restaurant owner who claimed that 1964 Civil Rights Act "constitute[d] an interference with the free exercise of [his] religion." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n.5. Although the restaurant owner's religion compelled him "to oppose any integration of the races whatever," 256 F. Supp. 941, 944 (D.S.C. 1966), and although the 1964 Civil Rights Act required him to serve all races in his restaurants, the Court characterized the argument as frivolous without engaging in any balancing of burdens and interests. "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees." - United States v. Lee, 455 U.S. 252, 261 (1982) Professor Berg offers an argument below that would have the effect of replacing the phrase "are not to be superimposed" in this passage with the phrase "may be superimposed if, after weighing the impact of the exemption on employees and the employer, the balance comes out in favor of the employer." That may well be a fine argument for taking a new approach, and it may well prevail in the current Court, but it does seem quite different from what the Court actually did and said about for-profit commercial exemption claims during the era of free-exercise jurisprudence that RFRA aimed to restore. (As for the Amos decision, it explicitly distinguished the nonprofit activities protected in that case from activities in the "commercial, profit-making world.") Are there any other post-Sherbert/pre-Smith cases besides *Piggie Park *and *Lee *in which the Supreme Court commented on commercial religious liberty claims? If not, I'm inclined to conclude that Nelson and Micah's characterization is spot on: "These corporate religious freedom cases are truly without precedent, yet they are coming to be viewed by the media and the courts as though they are part of a natural legal progression." On Tue, Nov 26, 2013 at 2:18 PM, Berg, Thomas C. <tcb...@stthomas.edu>wrote: [snip] > 1. I wonder whether it's really helpful or effective to start by > dismissing an argument as something "off the wall" that somehow, > inexplicably, has gone mainstream. The judges on both sides of this issue > have advanced serious arguments, and I'm more inclined to concentrate on > their merits. Which you ultimately do (at least on some of the issues): so > for me, at least, the "it's radical" pitch seemed simply to be preaching to > the choir. > [snip] > Moreover, you say that the fact that an exemption imposes costs on > third parties is sufficient reason in itself to invalidate it under the > Supreme Court's cases. But that is not the law. The Title VII exemption > upheld unanimously in Amos could have been said to impose costs on > employees. But as Justice Brennan later explained in the Texas Monthly > case, the exemption was upheld, "though it had some adverse effect on those > holding or seeking employment with those organizations (if not on taxpayers > generally), [because it] prevented potentially serious encroachments on > protected religious freedoms." 489 U.S. at 18 n.8. The Court treats > third-party effects as something to be weighed against the seriousness of > the “encroachment on religious freedom”—an approach that makes sense, given > that pretty much any employment regulation, and therefore any exemption > from it, could be said to affect third parties. Your position, on the > other hand, appears to be that "effect on third parties" is a reason to > declare that no encroachment on religious freedom exists. If that is so, > how can there be accommodations for religious organizations? > [snip] > Second, you quote Thornton v. Caldor's statement that “[t]he First > Amendment gives no one the right to insist that in pursuit of their own > interests others must conform their conduct to his own religious > necessities” (a principle that you say "matters here in a particularly > powerful way"). Now, I understand and am actually rather sympathetic to > the idea that the contraception mandate increases the ability of women > employees with modest incomes to afford contraception. But your phrasing > does immediately trigger the response that the objecting employer is *not*, > in fact, insisting that the employees “must conform their conduct to his > own religious necessities.” The employer is not insisting that employees > refrain from using contraception, or from obtaining it by means other than > the insurance coverage. > [snip] > Thomas C. Berg > > > ---------------------------------------------------------------------------- > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe > Sent: Tuesday, November 26, 2013 2:36 PM > To: religionlaw@lists.ucla.edu > Subject: Contraception Mandate > > > > Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), > commenting on today's cert. grant. We emphasize three differences between > these cases and Citizens United, including the significant Establishment > Clause ramifications of ruling in favor of the corporations here. We link > to important work by Fred Gedicks developing the nonestablishment argument. > > > > > http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html > > > > Nelson Tebbe > >
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